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Summary of Paper In Jespersen v. Harrah's (2004), a 9 th Circuit panel upheld Harrah's termination of a high- performing bartender for refusal to wear makeup pursuant to its "Personal Best" appearance code The policy requires women to wear colored nail polish, "teased, curled, or styled" hair, and facial makeup (foundation, blush, mascara, lip color) The decision is out of step with other 9 th Circuit and U.S. Supreme Court cases which have found workplace standards that perpetuate gender stereotypes to be discriminatory under Title VII

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But there’s more to it than that... Panel majority’s misapplication of Title VII “Unequal Burdens” Test Panel majority’s mishandling of Price Waterhouse gender stereotype issue Difficulties with gender-stereotypic appearance standards as BFOQs

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Harrah’s “Personal Best” Appearance Standards (excerpts) Must be “well groomed, appealing to the eye, firm and body toned” [both sexes] Must maintain Personal Best Image [both sexes] Males: ”Hair must not extend below top of shirt collar. Ponytails are prohibited.” Females: ”Hair must be teased, curled, or styled every day... make up (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors... lip color must be worn at all times.”

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Enforcement of Policy Each Harrah’s service employee must attend "Personal Best Image Training“ Harrah’s "Image Facilitators" give women makeovers to get them "properly" made up Harrah's instructs each employee on compliance Harrah’s takes portrait & full body photographs of each employee looking their "Personal Best“ Photographs placed in employee's personnel file, distributed to employee's supervisor Employee held accountable to appearance in photos on a daily basis

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“Equal” Burdens?! Majority finds record insufficient to show different burdens by gender Majority refuses to take judicial notice of time & cost of compliance Majority concludes burdens overall no greater than “ordinary” grooming requirements for either sex... Huh?!

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How about Adverse Impact? If “Personal Best” standards are indeed “neutral” [implicit in majority decision?], might they still have disproportionate gender impact in operation and effect? If so, then they must be validated (i.e., job related and consistent with business necessity; Griggs v. Duke Power, 1971) Question: Could they be? Answer: Probably not.

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Conclusion Increasing demographic diversity in global workforces should erode role stereotypes over time; but,... Until that occurs, unfortunate—and probably discriminatory—gender specific employment practices will continue to take their toll on individuals and organizations alike